A Treaty Right For Cherokee Representation : Code Switch On this week's episode of Code Switch, we talk about the relevance of a 200 year old treaty — one that most Americans don't know that much about, but should. It's a treaty that led to the Trail of Tears, but also secured a tenuous promise.

A Treaty Right For Cherokee Representation

A Treaty Right For Cherokee Representation

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The artist's depiction of how the Trail of Tears is related to the Treaty of New Echota. Weshoyot Alvitre for NPR hide caption

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Weshoyot Alvitre for NPR

The artist's depiction of how the Trail of Tears is related to the Treaty of New Echota.

Weshoyot Alvitre for NPR

On this week's episode of Code Switch, we talk about the relevance of a 200 year old treaty — one that most Americans don't know that much about, but should.

Back when it was signed in 1835, during the Andrew Jackson administration, the Treaty of New Echota granted the Cherokee Nation a delegate in the U.S. House of Representatives. But it's also the same treaty that led directly to the Trail of Tears, and the death of an estimated 4,000 Cherokee. And the document pit Cherokee against Cherokee — more specifically, a few powerful men who reluctantly supported removal from their ancestral home, against a huge majority who were adamantly against making that move.

But the Cherokee nation hadn't always been divided like this. Previous to the treaty's signing, the vast majority wanted to stay on their land in the South, in what's now Georgia, Tennessee, North Carolina and parts of Alabama. To help us understand what happened in the lead-up to the treaty, we talked to Julie Reed, a historian at Penn State University and a citizen of the Cherokee Nation. Our conversation has been edited and condensed for clarity.

Where would you start the story of the Treaty of New Echota?

Well, that history starts much earlier than 1835. I actually have been increasingly referring to the first decades of the 19th century as the "long removal era." Jackson wasn't the first president to introduce removal, and Jackson was also a part of a lot of other treaties that took place before the removal treaty. But it was Jefferson who first promoted Indian removal — albeit not forcibly. There were 1817 and 1819 treaties with the Cherokee, which both contained removal provisions. It didn't require full-scale community removal, but individual people could opt to move west of the Mississippi. So the story could start there, conceivably.

If we're thinking about the delegate provision in the Treaty of New Echota, we have to go back even earlier, because the Treaty of Hopewell in 1785 actually makes a provision for representation in Congress. The language is not as strong as it is in the Treaty of New Echota, but it's present.

Throughout this period, a young United States is trying to figure out what its moral and legal obligations to Native peoples are. And one of the options on the table, of course. is full inclusion of native peoples into this larger democracy. Albeit, it's not immediate and not necessarily for everyone, but that was one of the possibilities. And then the second possibility of course is, the idea that "We need to remove Native people."

And after the Hopewell Treaty came Thomas Jefferson, right?

Yes, Thomas Jefferson introduced what we would term the "civilization policy," the goal of which was assimilation. It's the idea that, if Native people could conform or change enough, then they could be citizens. He also envisioned Native people and European Americans intermarrying and becoming one people. And so the civilization policy left room for the full inclusion of Native peoples: that if they Christianized, if they learned English, if they started participating in a market economy, if they could get women to stop farming and have men to do it instead, then somehow they could actually remain and participate in the United States.

But increasingly throughout those early decades of the 19th century, the Cherokee Nation is increasingly nationalizing itself and creating its own form of government. And in many ways, it's modeling it in some ways off of what the United States has done, but also doing it in uniquely Cherokee ways and asserting their own Cherokee national sovereignty. And so there's a tension in that. On the one hand, the U.S. government was saying, Yes we should let Native people become part of the United States. But Native people didn't necessarily want to become full citizens in the United States, because that also had some baggage attached to it.

The treaties from 1817 and 1819 that I mentioned, which had provisions for voluntary removal, also had provisions for people to become residents of the states in which they were residing and take land reserves. Well, that was a failure. Most people that took those land reserves were either subjected to land lotteries in Georgia and lost their land, or they were run off their lands by illegal settlers. And increasingly, they couldn't get any aid in the state courts.

So even though the United States is saying, Yes, we'll grant citizenship and Yes, we will extend these democratic rights to you, individual states were not actually going to fulfill their obligations to those folks. So Cherokee people realized they were going to be second-class citizens within the larger United States. And why be a second-class citizen when you can be an equal citizen within the Cherokee Nation? And so some of those plans for full inclusion were utter failures, because Southern people had no intentions of treating Cherokee people equally.

And then you have Andrew Jackson in 1829, and it feels like things completely devolve under his administration.

Andrew Jackson is a Southerner himself. He's a slave holder. He's a land speculator. His alliances are with people like people in the Georgia state legislature, who want the 1802 Georgia compact fulfilled, whereby Georgia gains access to all of the lands that Cherokee people claim as their own.

1829 is kind of a turning point, because the discovery of gold happens on Cherokee lands. And so there becomes a squaring off over the use and the mining of those gold mines. At that point, Georgia establishes its own home guard to protect the monetary wealth that everybody wants their hands in, whether it's the federal government wanting access to those mines, the Georgia state legislature, individual people who would like to become wealthy, and also the Cherokee nation. I mean, this is the Cherokee nation's land and, arguably, resources that the nation itself would like to be able to control. I would not argue that gold is the single motivating factor for removal, but it absolutely did not help.

How did this help lead to the Treaty of New Echota?

There was a unified front amongst Cherokee people against removal, basically through 1832. The Cherokees are mostly united in that sense, with the exception of about 1,000 to 2,000 people who, under these earlier provisions, decided to remove West before forced removal. But the bulk of Cherokee people are unified against removal.

But then, a series of events began to play out, which changed the minds of some individuals and particularly some elite leaders. When the Worcester v. Georgia decision came down in 1832 from the Supreme Court, it essentially maintained the rights of the Cherokee nation and said that the nation can maintain itself on its lands and it has the right to govern itself. But Jackson was president at the time, and he sent the signal that he had no intention of actually enforcing the Supreme Court decision at that point.

How exactly did Jackson send that signal?

He called the power of the Supreme Court into question by basically saying, Yeah they can make this decision. But without the power of the executive branch, they have no ability to actually enforce the decision. And Jackson had no intentions of doing so. He had no intentions of bringing troops together in this instance to guard and protect the rights of Cherokee people.

These were not the only events playing out. There were also other tribes fighting against removal, at almost the exact same moment that the Worcester v. Georgia decision came down. The Creek nation, which was a regional neighbor, signed their removal treaty. So not only were the Cherokee not going to get the help from the United States government that they hoped they'd receive with the Supreme Court decision, but they were also losing their one Native neighbor who was a buffer and potential ally in the larger push against removal.

And at this point, Georgia was saying they were not going to allow the Cherokee government to run itself within their own borders. The nation was going to be subjected to the laws of that particular state, but the Cherokee people were not going to be able to defend themselves in court or bring suit in courts of law in Southern states. So essentially, there was a lawlessness playing out on the ground, too, that everyday people were experiencing. Cherokees could be robbed; they could be raped; they could be assaulted; and they had no recourse if they chose to remain in the Southern states where they were residing.

And so at that point Cherokee people were under mounting pressure, and Cherokee leaders began to see that there's a sense of hopelessness. And so they begin talking about removal, and delve into this possibility of agreeing to removal. But there was still fierce debate, and there were all sorts of techniques being used throughout this period to push removal back, to hold off as long as possible.

To hear more about the Treaty of New Echota and the fallout from its signing, listen to this week's Code Switch episode wherever you get your podcasts, including NPR One, Apple Podcasts, Spotify, Pocket Casts, Stitcher, Google Podcasts and RSS.